(COURT OP APPEAL) *

OM SAMMAH  FARRAH v. OSMAN  TAHA  MOHAMED  FAGEER

AC-REV-648-1965

Principles

·  Landlord and Tenant—Eviction for failure to pay rent lawfully due—Duty of tenant to raise the plea of estoppel before framing the issues, if not exercised, may be deviated from if from the facts of the case the requirements of justice call

Respondent, landlord, brought this action for recovery of possession of his premises on the ground of non-payment of a month’s rent by applicant, tenant. Applicant denied respondent’s right to possession, but admitted non-payment without raising the plea of estoppel. i.e., non-insistence on punctual payment. The court, without examining the applicant on the reason of his denial to possession and before framing an issue as regards possession, passed a decree on admission and awarded possession to respondent on ground of failure to pay rent lawfully due. Acting Province Judge confirmed the court’s decree.
Held: Decree of the court awarding eviction is set aside and the case is sent for retrial; because the duty of the tenant to raise the plea of estoppel, before framing of the issues, if not exercised by tenant, then such duty may be deviated from if from the facts of the case the requirements of justice calls Therefore, from the facts of this case, it is the duty of the court to examine the tenant on the reason of his denial to possession, and frame an issue accordingly.

Judgment

Advocate: Hassan N. Lashin ………………………………………..for applicant

El Fatih Awouda J. May 16. 1966 is the tenant of ‘part of House No. Block 2, Khartoum North Deims, at a monthly rent of £S. Respondent on May so, i96 brought his action in the District Court for recovery of £S.3.000m/ms., being rent for the month of April, and eviction for failure to pay that rent when it fell due on May1965 . On May 15, 1965, applicant paid the rent. A decree for possession was passed on May 30, 1965. and an application for revision therefrom was summarily dismissed by the learned Acting Province Judge. The brief record of the suit reveals that when respondent called upon applicant to pay the rent she asked him to come some other time as she had no money in hand then. She denied before the court respondent’ right to possession of the premises. Thereupon. and without framing an issue with regard to whether respondent was entitled to possession. the District Judge passed what he called a decree on admission. It is to be noted that applicant was not represented by an advocate at the trial of the suit.

In his application to this court advocate for applicant contended that his client had been a good tenant for the last nine years, and that it had been the practice for respondent throughout that period to call for the rent any day between the 20th and the 20th of every month, i.e., non- insistence on punctual payment. It is true that the court in Amin Osman Hamdi v. El Tahir Hussein (1960) S.L.J.R. 162 laid down the principle that if the tenant wants to set up an estoppel, he must plead the estoppel or otherwise bring it to the notice of the court trying the case before framing of the issues, that is to say, it cannot be set up at a later stage of the proceedings after the issues have been framed. But the principle is not to be applied rigidly. It may be deviate4 from if the requirements of justice call for such deviation, as demonstrated in the same suit above cited.

Respondent, landlord, brought this action for recovery of possession of his premises on the ground of non-payment of a month’s rent by applicant, tenant. Applicant denied respondent’s right to possession, but admitted non-payment without raising the plea of estoppel. i.e., non-insistence on punctual payment. The court, without examining the applicant on the reason of his denial to possession and before framing an issue as regards possession, passed a decree on admission and awarded possession 3wwto respondent on ground of failure to pay rent lawfully due. Acting Province Judge confirmed the court’s decree.
 

In this case applicant contested respondent’s claim for recovery of possession while admitting having paid the rent on May 15, 1965. Had the court asked applicant why, she might have pointed out the practice of non-insistence on the punctuality of payment or, indeed, this might have been made out if the issue of whether respondent was entitled to possession was framed and tried.

This application is therefore allowed and the case is sent back to the District Judge for rehearing for the purpose of examining applicant as to whether by her denial she is raising the defence of waiver, and to frame and try the issue thereafter.

No order as to costs of this application.

Osman El Tayeb J. May 16, 1966:—I agree. This application is allowed and the case is sent back for retrial as indicated.

* Court: Osman El Tayeb J. and El Fatih Awouda J.